Whether AGS was justified in refusing the applicant's request for all records relating to him dating from 2014 under section 15(1)(b) of the FOI Act on the basis that the request does not comply with the requirements of section 12(1)(b) to contain sufficient particulars to enable the requested record to be identified by the taking of reasonable steps or under section 15(1)(c) on the basis that searching for and retrieving the relevant records would cause an unreasonable interference with or disruption of the work of AGS
08 July 2019
The FOI request in this case arose from AGS's disclosure of a particular record to the applicant in or around September 2018 under the Data Protection (DP) regime. This record, which is a letter dating from June 2015, was not included in records considered by AGS to be covered by an FOI request made by the applicant on 16 December 2015. The applicant asked AGS for an explanation. It made enquiries and told him that the record was not provided to the FOI officer as part of the FOI decision making process. The applicant asked if it was possible to get an explanation "and the records around it". AGS advised him to make an FOI request seeking relevant records.
The applicant made an FOI request to AGS on 4 October 2018. He referred to the above exchanges and requested access to "all records held by [AGS] and its officers relating to me ... from 30 January 2014 to date." He said that he was requesting "copies of all paper and electronic records, in their original format, where [his] name appears including internally and externally created, inbound and outbound communications, records of any telephone conversations, internal and inter-departmental memos, attaching Post-it's or other media, and meetings with regard to any and all correspondence with regards to me."
On 18 October 2018 AGS told the applicant that not all records held by the organisation are subject to FOI. It referred him to Part 1(n) of Schedule 1 to the FOI Act, which provides that a reference to AGS as an FOI body does not include a reference to it "other than insofar as it relates to administrative matters relating to human resources, or finance or procurement matters". It also referred him to the requirements of section 12(1)(b) of the FOI Act, which requires FOI requests to contain sufficient particulars to enable requested records to be identified by the taking of reasonable steps. AGS also referred the applicant to section 27(4) of the FOI Act, which provides for the charging of fees for significant numbers of records containing only a requester's personal information. It asked the applicant to provide further detail about the specific human resources, finance or procurement records that he was seeking further to his request. It said that such clarification would enable the FOI office to seek the identification of the requested records, if any, from the relevant areas of AGS by the taking of reasonable steps. It also told him that the 20 working day time-frame for processing his request cannot commence until such time as clarification is received.
The applicant replied on 20 October 2018. He "confirm[ed] that the FOI request relates to HR, Finance and IT areas." He referred to the record provided to him under DP and said that he had been advised to make an FOI request for the records concerned, which is what he had done. He asked for "these records and all the surrounding records including the records as set out in the FOI request."
In response, AGS again referred the applicant to the requirements of section 12(1)(b) and to section 27(4). It asked for further detail of the specific human resources, finance or procurement records that he was seeking further to his request of 4 October.
On 29 October 2018, the applicant replied to AGS saying that he was seeking "all records including 'post it' notes, emails, memos, reports, etc., as follows:
1. Again referring to the record provided to him under DP, the applicant reiterated that he "want[ed] it and all records around that record and those contained in [his] initial FOI request." He said that "[i]t's the records to and from all parties relating to the allegations of Bullying and Harassment and the records to and from and at the Commissioners, CAO, Deputy Commissioner, HRPD, [a named individual, Mr Z], his consulting company, etc."
2. "All records relating to issues raised by [a named member of AGS] pertaining to some purported "grievance procedure" initiated in the spring 2018, in which I am named. I understand that records exist and the following may help, the office of Deputy Commissioner P&S, the office of the CAO, the Office at HRPD and the Office of the Equality Officer. I understand that the document may have been sent external to AGS and I would also request those records and any incoming records as well."
3. "All records relating to three anonymous letters which were created and gathered in connection with [a named AGS Operation] and other inquiries conducted by [a named former member of AGS] and separately by [a named member of AGS] and all the records of at HRPD, P&S, Office of the Commissioner, etc., to and from the Public Appointment Service etc."
4. "All records relating to those matters, created by [a named member of AGS], concerning [the applicant], in relation to matters as directed by the office of the Commissioner and or the then office of Deputy Commissioner Operations."
5. "All records in relation to emails sent and received by [a named individual] from journalists concerning me and records concerning all communications in these matters throughout [AGS]."
6. "All records relating to [a particular matter concerning the applicant] arising from an incident at [a particular AGS station] involving [a named former member of AGS] and others. I understand there are records at the office of the CAO and Deputy Commissioner P&S. I also see (sic) all records relating to the appointment of the garda personnel (Commissioner's nominee of A/C rank) on the final selection boards for the competition of Sergeant to Inspector in 2018."
7. "All records for the past 24 months, in relation to the competition for the Armed Support Unit, following [a particular report] to then acting Commissioner, Deputy Commissioner P&S, HRPD and other sections."
8. "In relation to sections 8, 9, 10 and 11 of this document, which can be linked; I seek all records concerning communications, including 'Post it notes', emails, memos, reports and business cases etc for any member of [AGS] 'acting up' whether substantive or not. This applies to the rank of Assistant Commissioner, Deputy Commissioner or Commissioner of [AGS] for the period commencing 1st July 2014 to 22nd September 2018, but not including records concerning, the person who is the current Garda Commissioner. This should include any records concerning retrospective decisions made around the appointments and should include records of start and end dates."
9. "All records concerning communications, including 'Post it notes', emails, memos, reports and business cases etc. giving details of the decision making rationale etc., details of authorised officers, who made the decisions including recommendations or records concerning further information from any party e.g. DPER, Department of Justice & Equality and [AGS]. This includes[s] any retrospective decision makers around same appointments and records of any advice sought from the relevant Public Sector Bodies e.g. CPSA, PAS etc."
10. "All records concerning communications, including 'Post it notes', emails, memos, reports and business cases etc. of all payments of acting up allowances by grade, individual and by calendar quarter. These records should show the period of the claim, the cash value, how computed and the recommendations for payment i.e. records of the person recommending and the person authorising payment in each instance. The records should indicate any retrospective decisions made around the appointments records including copies of invoices or other such documents, copies of records of internal forms or certificates, used to process the payment of any acting up allowance".
11. "All records concerning communications, including 'Post it notes', emails, memos, reports and business cases etc. of any applications for 'acting up', the selection process, the procedure including any advertisement, application form, section process document and evaluation methods. Records of who was managing and who selected, designed and approved the selection process. All records of any retrospective decisions around the retrospective appointments and qualification for payment of acting up allowance."
On 2 November 2018, AGS told the applicant that his requests were not considered to be valid and will not be processed "until they are reduced so as reasonable steps can be taken ... to provide the relevant records". It also said that the expanse of records sought "would require a significant amount of effort and interfere with the workings of a number of offices and therefore the steps required to identify and retrieve all the requested records are considered ... to be completely unreasonable." It went on to describe the requirements of section 12(1)(b) and said, essentially, that the email of 29 October did not comply with the provision. It suggested making an FOI request for one set of defined records relating to a particular event/topic/dates created within a reasonable time period. It said that the staff of the FOI Office would endeavour to assist him to amend his request.
The applicant replied on 3 November 2018. He said that further to his 2015 request, AGS "failed to provide" a record and "did not include it in the schedule". He said that he provided AGS with a copy of the record to assist it and that he had asked for "the records around that record and an explanation why the act was not complied with." He said that the FOI office had advised him to make a request and he had done so. He said that AGS had asked for more detail about that request, which he had given. He said that he was not sure what AGS meant and asked for an explanation. He said that in the meantime he "cannot understand your delay about providing the [Mr Z] records and the internal correspondence contained in records around them. There is simply no excuse for the non provision of that record. Indeed I think its fair to work on the basis that I should now ask for an internal review or treat your action as a refusal of my valid FOI request." He sought an update on the status of his request on 11 November 2018.
On 15 November 2018, AGS told him that his emails are not valid FOI requests and therefore the 20 working day timeframe for issuing a decision under the Act could not commence. It said that the FOI office remained available to help him amend his request for re-submission.
On 20 November 2018, the applicant thanked AGS for its offer to assist him in refining his FOI request. He said he "would be glad to know what redefining does it need?" and that he would welcome suggestions.
AGS replied to the applicant on 22 November 2018. Referring to certain records he had said he wanted, it gave him "by way of assistance" an example of how he might frame a request for such records. AGS explained that its example had "a named person, a specific event, a time period and a limited number of records that may be easily identifiable by the relevant section" of AGS and did not look "for all or any records associated with an individual across a number of years." It said that the Act provides a way of seeking records held by an FOI body in a reasonable manner and that the FOI Office would continue to work with him to amend his request for re-submission.
AGS emailed the applicant on 6 December 2018 to say that it had not heard further from him and to reiterate its offer of help. On 10 January 2019, the applicant asked AGS to refer for internal review what he considered to have been a decision on his request. He said that he had "set out clearly what [he wanted]" and that it "was clear enough the first time for AGS to provide the records under the Act. What happened is I was not provided with part of the record by [AGS]." He said that he asked AGS for advice as to how to get the records and was advised to make an FOI request, which he had done.
AGS issued a decision on the request on 6 February 2019. It summarised the various correspondence arising from the request of 4 October 2018, and said that it was refusing it under section 15(1)(b) of the FOI Act, which provides for the refusal of an FOI request where it does not comply with section 12(1)(b)). The applicant sought an internal review on 14 February 2019. On 7 March 2019, AGS issued an internal review decision affirming its refusal to grant the request under section 15(1)(b).
The applicant sought a review by this Office of AGS's decision on 18 March 2019. During the review, AGS also sought to rely on section 15(1)(c) of the FOI Act, on the basis that searching for and retrieving the requested records would cause an unreasonable interference with or disruption of the work of the organisation.
I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, AGS and the applicant. I have had regard also to the provisions of the FOI Act.
Scope of the Review
This review is confined to whether or not AGS is justified in refusing to grant the applicant's request under section 15(1)(b) and/or section 15(1)(c) of the FOI Act.
It is unclear whether AGS took the applicant's emails to it of 4, 20 and 29 October 2018 as separate FOI requests. Indeed, on its face the email of 29 October seems to expand the scope of the request of 4 October and in that respect could be seen as a new request. However, having regard to the many exchanges between AGS and the applicant, it seems to me that the applicant's emails of 20 and 29 October resulted from AGS's requests to make clearer what records he was seeking in his FOI request of 4 October 2018. Accordingly, the applicant's request extends to such records as described in his email to AGS of 29 October 2018 that relate to him and "where [his] name appears" from 30 January 2014 to 4 October 2018.
Section 15(1)(b) of the FOI Act may indeed have relevance in this case, having regard to the open-ended nature of some parts of the FOI request. There is also a certain amount of overlap between it and section 15(1)(c), in that they are both, essentially, concerned with the taking by the FOI body of "reasonable steps" in order to decide on an FOI request. However, in the overall circumstances of this case, in my view section 15(1)(c) is the more appropriate provision to consider.
Section 15(1)(c) provides that a request may be refused where "in the opinion of the head, granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of work (including disruption of work in a particular functional area) of the FOI body concerned.
On 5 June 2019, this Office's Investigator described to the applicant the various steps that AGS says it would have to take to respond to his FOI request. The applicant did not reply.
In summary, the applicant has specified that he is seeking records relating to him that concern 11 different matters. That said, the wording of part 6. of the email of 29 October 2018, which is listed above in full, on its face seems to concern two separate matters. In any event, on any reading the various matters involve a range of specified former and serving AGS personnel, various events and incidents, appointments, a contractor to AGS and various FOI bodies.
The applicant seeks a broad range of paper records as well as electronic records. While his email of 29 October narrows the date ranges of some classes of records sought, he seeks in most cases four years' worth of such material. Indeed, noting that part 8 seeks records concerning retrospective decisions on appointments, AGS says that records dating from before 1 July 2014 may also have to be searched for.
Relevant records are likely to be held in a range of offices and units within AGS. It is possible that AGS units not mentioned in the email of 29 October may also hold records. Records covered by the request may be contained in assorted HR, procurement, legal, payroll and other types of file. The applicant has sought some records that AGS says are not subject to FOI. In this respect, while I note that the applicant considers the records sought at part 3. to comprise HR records, it is a matter of fact that such records concern a named Garda operation. Records relating to the applicant may also relate to other identifiable individuals and therefore contain personal information relating to such individuals.
Certain aspects of the request are particularly vague. Part 2. seeks records sent "external to AGS" and "any incoming records", which AGS considers to give no indication of what areas such documents might have been sent to or from and thus what further areas may need to be searched. I note also that part 9. seeks records received from external sources that are not confined to the Department of Public Expenditure and Reform, the Department of Justice and Equality and the Commission for Public Service Appointments. AGS says that the applicant's reference at Part 3. to "all the records of at HRPD, P&S, Office of the Commissioner etc to and from the Public Appointments Service" could encompass records held by the organisation at national level. It also says that while records concerning part 4. may be held in two specific offices, the applicant does not specify what "those matters/matters as directed" refer to and therefore that this could cover a particularly broad range of records, including records not subject to FOI. AGS says it that it is difficult to ascertain what records the applicant is seeking in relation to part 5. where he refers to "communications in these matters throughout [AGS]". It says that this could extend to records held across the organisation's 29 operational Divisions. AGS also notes that part 7. includes a reference to unspecified "other sections" that may hold relevant records and that it is difficult to ascertain how many additional files may be held and where they are held.
AGS says that it would have to identify and search paper and electronic files concerning the individual matters referred to in the email of 29 October. It says that it would have to carry out searches of shared drives, section mailboxes in offices and individual in-boxes. AGS says that, because of the particular role of the individual named in part 5., thousands of emails may need to be searched. It would have to examine the records to see if they relate to the applicant. Having identified and retrieved relevant records, it would have to review and schedule them and redact any information that is not subject to FOI or that is exempt under the Act's provisions. Given the breadth of the request, AGS says that it is not able to estimate how long this process would take or how many staff would be involved.
The FOI Act places various requirements on FOI bodies that must be complied with. However, the provisions of section 15(1)(c) indicate that, given the ensuing administrative burden on FOI bodies, the Oireachtas expects requesters to behave reasonably when making FOI requests.
The applicant made his FOI request because he felt that AGS should have granted him access to the June 2015 letter on foot of his 2015 FOI request to that body. I can appreciate why he would have looked for an explanation for the apparent omission. I can also understand why he would have taken AGS's advice to make a request for any records in existence that might explain what happened. However, as is clear from the above, the FOI request that he made sought a considerably broader range of records. Given the applicant's experience in AGS and therefore the potential type and number of records that might refer or relate to him, it is hard to fathom how he considered his FOI request of 4 October to be reasonable, even if it was confined to records from 2014. The applicant may also consider his email of 29 October to sufficiently clarify his request. However, the details in it are quite vague and in my view he continues to seek a very broad range of records.
Having regard to the above, I accept that processing the applicant's FOI request would result in a substantial and unreasonable interference with or disruption to the work of various sections and units within AGS. I find that section 15(1)(c) applies.
Section 15(4) provides that section 15(1)(c) shall not be applied to a request unless the FOI body has assisted, or offered to assist, the requester to amend the request for re-submission such that it no longer falls within that section.
I have set out above the details of the correspondence between AGS and the applicant that arose from his FOI request of 4 October. While AGS referred him to the requirements of section 12(1)(b) and the provisions of section 15(1)(b), it also made it clear that it would have to take unreasonable steps to locate and consider the volume of records being requested. On more than one occasion it offered to help the applicant to amend his request to make it reasonable to deal with. It also gave him an example of how his request could be re-framed. In the circumstances, I am satisfied that AGS has complied with the requirements of section 15(4).
Case No 160276
My decision in Case No 160276 concerned AGS's decision on the applicant's 2015 FOI request. The applicant may be of the view that this Office should have identified the apparent omission of the June 2015 letter and either got a satisfactory explanation from AGS or required it to carry out further searches for the record.
Part B of the 2015 request sought records concerning a "Bullying and Harassment claim against [the applicant] by [an individual] including selection process and the public procurement associated with the selection of [Mr Z]." The Mr Z concerned is the same Mr Z referred to at Part 1. of the applicant's email to AGS of 29 October 2018 as described above.
Having regard to my examination of the records and correspondence that this Office received from Mr Z in Case No 160276, my decision on Part B found that AGS had clearly not considered certain invoices for release. I directed AGS to look for the missing invoices and any material attached to them and consider them for release.
However, the applicant had argued that many other types of record should have been considered by AGS in relation to Part B in Case No 160276. I found that AGS had taken reasonable steps to look for such records and that section 15(1)(a) applied. My finding was subject to one caveat. While it seemed to me that this Office could direct further searches for certain emails, I decided that there was no purpose in doing so because any such records would contain personal information that would be exempt under section 37 of the FOI Act in any event.
Given my overall finding in this case, I have not asked AGS to explain why the June 2015 letter was not considered as part of the records identified as covered by the applicant's 2015 FOI request. However, I should make it clear that section 15(1)(a) of the FOI Act requires FOI bodies to take "reasonable" steps to look for records. It does not require them to conduct exhaustive searches for records. Section 15(1)(a) may be found to apply in a case where a record that is known as a matter of fact to have been created cannot be found. Furthermore, a finding by this Office that section 15(1)(a) applies to a request does not mean that an FOI body could not find further records covered by a request at some point in the future.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm AGS's refusal to grant the applicant's request, although under section 15(1)(c) of the FOI Act rather than section 15(1)(b) as relied on in its decisions.
Right of Appeal
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.